Flex water bill advances

A bill that would create a new class of water rights called flex marketing was given the blessing of the state House agriculture committee Monday on a 10-3 vote.

Leroy Garcia

Supporters say it allows water to stay in the hands of farmers, while increasing potential uses. Opponents say it could be a “Trojan horse” for cities to take more farm water.

Opposing the bill was state Rep. Leroy Garcia, D-Pueblo, joined by Republicans Don Coram of Montrose and Ray Scott of Grand Junction.

“I think that based on what I was hearing in the committee, and from people in my district, that this bill is not in the best interests of the Arkansas Valley,” Garcia said.

The bill, HB1026, is backed by Aurora and other interests in the South Platte River basin as a way to allow transfers of agricultural water that do not require complete dry-up of farmland. It would allow consumptive use to be transferred in exchange for fallowing land or reduced irrigation.

After the bill was amended to allow projects to circle back to water court if other water rights were injured, return flow issues and a basin-of-origin provision was added, the bill got the support of the Colorado Water Congress state affairs committee.

The bill also interests the Pueblo Board of Water Works, which could use it to enhance its shares of the Bessemer Ditch.

“The amendments satisfied most of the objections of committee members,” said Paul Fanning, water board spokesman and a member of the CWC state affairs committee.

Opponents of the bill, including The Pueblo Chieftain editorial board, say that it amounts to an end-run around the anti-speculation doctrine of state water law. There also are concerns that the new flex water right would facilitate permanent dry-ups.

Lower Arkansas Valley Water Conservancy District’s attorney Peter Nichols told the House committee the bill needs more controls in order to avoid speculation.

“Our big fear is that this could be a Trojan horse for municipalities to come in and take water from farms,” said Jay Winner, general manager of the Lower Ark district.

The district will ask the sponsor, state Rep. Randy Fischer, who chairs the ag committee, to amend it in order to prevent speculation.

“Farmers need tools like this if alternative transfer methods like the Super Ditch are going to be successful,” Winner added. “In the form it’s in, this bill isn’t the way to do it.”

While other amendments still could be added to the bill, Garcia said he ultimately will not support it.

“I don’t think the bill is going to change enough,” Garcia said. “It does little to protect existing water rights.”